Share this story:

In a case filed by a now deceased gay skydiver who alleged sexual-orientation discrimination in the workforce, the U.S. Second Circuit Court of Appeals April 18 declined to accept the legal argument that anti-gay discrimination is prohibited under current federal civil rights law.

In a 13-page decision, the three-judge panel cites a 2000 decision in the Simonton case, a 2nd Circuit ruling that determined Title VII of the Civil Rights Act of the 1964, which bars sex discrimination in the workforce, doesn’t apply to sexual orientation. As a result of that precedent, the panel concludes Title VII cannot be applied in the pending case, named Zarda v. Altitude Express.

The unanimous ruling concludes that precedent “can only be overturned by the entire Court sitting en banc,” which would require consideration of the case by the full court as opposed to the three-judge panel.

It’s the second time within a month the 2nd Circuit has found sexual-orientation discrimination is permitted under federal civil rights law. Last month in the case Christiansen v. Omnicom Group, a different three-judge panel found that precedent precluded the court from determining that anti-gay bias is illegal, although the judges still ruled in favor of the plaintiff on the basis that the nature of the discrimination he faced was sex stereotyping.

The 2nd Circuit case was filed by Donald Zarda, a gay skydiver who alleged he was terminated from his position at Altitude Express for disclosing his sexual orientation to his client. In response, the company maintained the client “had various complaints about Zarda’s behavior” other than disclosure of his sexual orientation and he was fired because “he failed to provide an enjoyable experience for a customer.” According to media reports, the client accused him of fondling her in mid-air.

According to the ruling, Zarda died in a skydiving accident before the case went to trial, and two executors of his estate have replaced him as plaintiff. Zarda’s obituary states he died in Switzerland in 2014 as he was pursuing European Union citizenship.

At trial court, Zarda contended his firing was illegal both under Title VII and New York state law, which explicitly bars discrimination on the basis of sexual orientation. The trial court rejected his Title VII claim and also ruled in favor of Altitude Express under state law, saying Zarda didn’t meet the burden of proof he could keep his job if only he wasn’t gay.

The Second Circuit determines Zarda may be qualified for relief under Title VII because federal law has a less stringent “motivating-factor” test of causation, but nonetheless the judges say they can’t rule for him because of precedent within the circuit.

Although judges in the Christiansen case granted the plaintiff relief on the basis that he suffered discrimination on sex-stereotyping claims, the Second Circuit in the Zarda case determines it cannot reach a similar conclusion.

“That route is unavailable to Zarda, since, as explained above, the district court found that Zarda failed to establish the requisite proximity between his termination and his failure to conform to gender stereotypes, and Zarda did not challenge that determination on appeal,” the decision says. “Consequently, Zarda may receive a new trial only if Title VII’s prohibition on sex discrimination encompasses discrimination based on sexual orientation — a result foreclosed by Simonton.”

The three-judge panel consists of U.S. Circuit Judge Dennis Jacobs, a George H.W. Bush appointee; U.S. Circuit Judge Robert Sack, a Clinton appointee; and U.S. Senior Judge Gerard Lynch, an Obama appointee.

Gregory Antollino, the New York-based attorney representing the Zarda estate, told the Washington Blade his legal team intends to file for “en banc” review of the decision before the full Second Circuit.

Share this story:

Chris Johnson of the Washington Blade, courtesy of the National Gay Media Association

Resources

Login

About Us

Watermark is a multi-faceted media company using opportunities and innovations to communicate and advance LGBT interests, with a corporate emphasis on professionalism while building strong relationships with our readers, customers and community.

Watermark Media was founded by Tom Dyer in Orlando in 1994, and expanded to Tampa Bay in 1995. Dyer is an attorney, former board member of the Metropolitan Business Association and Tampa International Gay & Lesbian Film Festival, and current advisory board member of the Harvey Milk Foundation.

Watermark prints up to 20,000 copies every other Thursday, and distributes them in more than 500 locations throughout Orlando, Tampa Bay, Sarasota and throughout the state. The newspaper donates more than $200,000 annually in free and sponsor advertising to worthy local and national LGBT non-profits.

Watermarkonline.com was launched in 1999. The award-winning newspaper currently maintains offices in Tampa Bay and Orlando and employs a full-time staff of 12, along with several part-time and freelance contributors.

Watermark Publishing Group, founded by publisher Rick Claggett, purchased Watermark in January of 2016. Rick Claggett is a long-time employee of Watermark Media and former board member of both the Metropolitan Business Association and Come Out With Pride.Read More...